-1945: The Allies’ Deliberations

Signatories to the Moscow Declaration continued issuing warnings to suspected WWII atrocity perpetrators. For example, on March 24, 1944, FDR threatened: “none who participate in these acts of savagery shall go unpunished ... . All who share in the guilt shall share the punishment.”19

Although Soviet leaders had supported the establishment of an ICT, they may have changed their minds temporarily in favor of the British preference for lethal force through extrajudicial execution. During the Tehran Conference, from November 28 to December 1, 1943,20 Stalin stated that between 50,000 and 100,000 German military officers should be summarily executed, though it is unclear whether he meant this comment seriously.21 Whether or not the Soviet Union sincerely took this position, though, no doubt exists that certain U.S. officials momentarily sided with the British preference for lethal force.

FDR consulted in early-September 1944 with two of his senior advisors. Secretary of the Treasury Henry Morgenthau, Jr. advocated, in addition to harsh economic penalties on Germany, that “arch-criminals of this war whose obvious guilt has generally been recognized by the United Nations ... shall be put to death forthwith by firing squads made up of soldiers of the United Nations.”22 Morgenthau further suggested that other war criminals be tried by military commissions and, if convicted, sentenced to death. In extenuating circumstances, he recommended, the USG could pursue alternative punishments, such as exile through “deportation to a penal colony outside of Germany.”23 Morgenthau also advocated the exile of all SS members and their families.24 His proposal received support from Secretary of State Cordell Hull and FDR’s personal aide, Harry Hopkins.25 In contrast, Secretary of War Henry Stimson, who initially (though privately) also considered supporting summary judgment (through execution),26 later argued explicitly against such punishment without due process. Instead he proposed that “at least as to the chief Nazi officials, we should participate in an international tribunal constituted to try them,” and that other war criminals “should be returned in accordance with the Moscow Declaration to those territories for trial by national military commissions ... .”27

Contrary to U.S. Supreme Court Justice Jackson’s later claim that “President Roosevelt had steadily and insistently favored a speedy but fair trial for these men, fearful that if they were punished without public proof of their crimes and opportunity to defend themselves there would always remain a doubt of their guilt that might raise a myth of martyrdom,”28 and despite FDR’s own declaration of August 21, 1942, supporting trials, the president temporarily sided with Morgenthau’s summary execution proposal. Morgenthau accompanied FDR to a September 1944 meeting with Churchill in Quebec at which Churchill submitted to the American delegation a document authored by British lord chancellor Sir John Simon. The document argued that “trial, conviction, and judicial sentence is quite inappropriate for notorious ringleaders” and that, instead, these individuals—whose atrocities had no geographical location—should be dealt with through a political decision of “execution.”29 On September 15, 1944, while still in Quebec, FDR and Churchill agreed that they would present the Lord Simon memorandum (which echoed Morgenthau’s summary execution proposal) to Stalin and invite his concurrence.30

British advocacy—and American and possibly also Soviet support— for summarily executing major Nazi war criminals proved fleeting. When Churchill met with Stalin in Moscow in October 1944, Stalin rejected the summary execution proposal memorialized in the Lord Simon memorandum and Morgenthau Plan, arguing that its implementation would convey to the world the Allies’ fear of prosecuting the major Nazi war criminals.31 As a result, Churchill withdrew his proposal shortly thereafter.32 And, by that time, FDR had independently changed his mind. On September 24, the New York Times ran a front-page article that described the economic proposals of the Morgenthau Plan for effectively turning Germany into an agrarian state through a process called “pastoralization,” but the article did not mention his proposals for addressing war criminals.33 Through opinion polls and newspaper editorials, the American public, focusing on economic policy rather than transitional justice options, expressed its outrage over treating the entire German nation so severely. In response, on October 3, 1944, FDR voiced his regret to Stimson for approving the Morgenthau Plan. Notably, this event occurred before Churchill recounted his meeting with Stalin to FDR in which Stalin rejected the Lord Simon memorandum.34

While FDR reconsidered his position, a political vacuum emerged in Washington regarding war crimes issues; bureaucratic infighting resulted in the War Department seizing leadership on this policy matter. As a result, Stimson’s preference for trials over mass extrajudicial execution dominated the discourse and gained the support of other senior U.S. officials, including the Army Chief of Staff, General George Marshall; the Judge Advocate General and future U.S. judge on the IMTFE, Major General Myron Cramer; and U.S. Supreme Court Justice Felix Frankfurter.35

In mid-September 1944, just after Allied troops entered Germany, a memorandum authored by Lieutenant Colonel Murray Bernays, who worked in the Personnel Division of the Army General Staff, was circulated within the War Department. This document explicitly argued against the transitional justice options of prosecution through domestic courts and lethal force through summary execution, and instead advocated prosecution through an “appropriately constituted international court.” The “Bernays Plan” also articulated many of the core concepts that would be included in the IMT’s subject-matter jurisdiction, such as conspiracy and organizational guilt.36 On October 1, 1944, Colonel Ammi Cutter, Assistant Executive Officer in the Office of the Assistant Secretary of War, sent a memorandum to his direct superior, Assistant Secretary of War (and future World Bank president) John McCloy, positively evaluating the Bernays Plan.37 By the end of the month, Stimson felt that the Bernays Plan merited circulation outside the War Department; on October 27, 1944, he wrote a memorandum to Hull favorably citing the plan.38

By November 11, 1944, the War, State, and Navy departments had developed a draft memorandum (written largely by Bernays) on prosecuting European war criminals.39 Disagreements within the USG persisted during the following month, however, with senior USG officials criticizing the most basic aspects of the Bernays Plan. Then, on December 17, 1944, during the Battle of the Bulge, the 1st SS Panzer Division Leibstandarte Adolf Hitler, which was commanded by Joachim Peiper, slaughtered dozens of American prisoners of war in Malmedy, Belgium.40 This German atrocity committed against Americans stifled much of the opposition within the USG to the Bernays Plan.41 Shortly thereafter, on January 22, 1945, Stimson and the new Secretary of State, Edward Stettinius, Jr., joined by Attorney General (and future U.S. judge on the IMT) Francis Biddle, presented a memorandum to FDR. The document, based on the Bernays Plan, explicitly argued against extrajudicial executions and instead called for the establishment of an “international military commission or [military] court” to prosecute the most senior Nazi officials and implicated Nazi organizations. It also featured proposals for prosecution charges to include conspiracy (“joint participation in a broad criminal enterprise”), individual guilt for organizational membership, and, as an element of the criminal enterprise, crimes against peace (“the waging of an illegal war of aggression”). The memorandum further proposed that “subsequent trials” would be held in “occupation courts,” civil or military courts of “the country concerned,” or “international military courts.”42 Notably, whereas the Bernays Plan called for the establishment of a treaty-based international court, the new memorandum backed the establishment of a tribunal by “Executive Agreement of the heads of State of the interested United Nations,” which “would require no enabling legislation [or treaty]” or, if it were preferred, “by action of the Supreme Authority [(Control Council for Germany)].”43

The following month, during the Yalta Conference held from February 4 to 11, 1945,44 the British once again argued for extrajudicially executing the major Nazi war criminals, although they allowed for lesser Nazi offenders to be prosecuted.45 No final decisions were made at the conference.46 Two months later, the Allies still could not reach agreement. In April 1945, French leader Charles de Gaulle stated a preference for prosecution over the extrajudicial execution of major Nazi war criminals, while the British War Cabinet declared its absolute opposition to trials for those individuals.47